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State v. Mantelli1/29/2002
arm or deadly force and the jury should have been allowed to consider this defense under proper instructions. Defendant asserts that instructions on this theory specifically applicable to police officers would have allowed him to argue additional and alternative theories of justification for the shooting which went beyond the normal self-defense and defense-of-others theories applicable to the public at large.
The State has never disputed that Defendant was a commissioned police officer and on-duty for the LVPD at the time of the shooting, and that he was justified in pursuing and attempting to apprehend Montoya. However, it argues that State v. Johnson, 1998-NMCA-019, 124 N.M. 647, 954 P.2d 79, requires a defendant requesting a justifiable homicide instruction to establish that his conduct satisfied a standard of "objective reasonableness" for the use of the deadly force prior to receiving such an instruction. Id. 13. The State contends that Defendant's actions in shooting at Montoya as he fled, exceeded Defendant's authority under Section 30-2-6 to use deadly force and cannot be considered reasonable as a matter of law. The State dramatized this point to the jury in its closing argument by repeatedly stating that police officers in New Mexico are not allowed to "shoot at a fleeing suspect."
The State also argues that Defendant did not present evidence that he shot Montoya in an attempt to arrest him for committing a felony per Section 30-2-6. Instead, it argues that under Defendant's version of events, the proper instruction was that the killing was justified as occurring in self-defense or defense of another and not "necessarily committed" in order to prevent the escape of a felon. Defendant was granted the UJI 14-5171 NMRA 2001 self-defense instruction.
The trial judge, persuaded by the State's arguments, refused to instruct the jury on justifiable homicide because sufficient evidence was not presented by Defendant for the court to believe that Defendant's actions could be considered objectively reasonable. At the hearing on Defendant's motion for a new trial, the trial judge also explained that he believed Defendant's theory was self-defense and defense of another and that he had not argued that the killing of Montoya was justifiable homicide.
B. Standard of Review
The trial court's rejection of Defendant's submitted jury instructions is reviewed by this Court de novo. State v. Lucero, 1998-NMSC-044, 5, 126 N.M. 552, 972 P.2d 1143. A "defendant is entitled to a jury instruction on the theory of his case as long as the evidence exists to support it" which is sufficient to allow reasonable minds to differ with respect to all elements of the defense. State v. Arias, 115 N.M. 93, 96, 847 P.2d 327, 330 (Ct. App. 1993). This is true whether the evidence raising the defense is adduced by the State or by defendant. State v. Akin, 75 N.M. 308, 310, 404 P.2d 134, 136 (1965); State v. Heisler, 58 N.M. 446, 454, 272 P.2d 660, 665 (1954). "The adequacy of a jury instruction is evaluated in the context of all the instructions given to the jury, in order to determine whether the instruction accurately states the law." State v. Sosa, 1997-NMSC-032, 25, 123 N.M. 564, 943 P.2d 1017.
C. Use of Deadly Force and Tennessee v. Garner
The use of deadly force by police officers to prevent the escape of a felony suspect originated in the common law. The common law rule "allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant." Garner, 471 U.S. at 12. Under the common law rule, which New Mexico accepted for much of its history, the reasonableness and necessity of the officer'
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